GERALD DRASEN, ET AL., PETITIONERS V. UNITED STATES OF AMERICA
No. 88-430
In The Supreme Court Of The United States
October Term, 1988
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit
Memorandum For The United States In Opposition
Petitioners contend that the court of appeals erred in reversing an
order dismissing an indictment on the ground that the federal firearms
statute in question did not cover unassembled rifles that had never
been assembled.
In 1986, petitioners were charged in six counts of an indictment
returned in the United States District Court for the Northern District
of Illinois. The indictment charged them with unlawfully dealing in
and transferring short-barrel rifles, in violation of 26 U.S.C. 5861.
On January 15, 1987, the district court dismissed those counts on the
ground that the statute, 26 U.S.C. 5861, does not cover unassembled
and never-before-assembled short barrel rifle parts. The court held
that such parts are not included within the plain language of the
statutory definition of "rifle" in 26 U.S.C. 5845(c), which includes
any "weapon which may be readily restored to fire a fixed cartridge."
The court also found that the statute did not give fair notice to
petitioners that their conduct was illegal (Pet. App. 36-52, 21-35).
The court of appeals, in a split decision, reversed (Pet. App.
1-16). The court relied on a formal ruling of the Commissioner of
Internal Revenue interpreting the statute, after it was adopted in
1954 to reach the possession of sufficient parts to assemble an
operative firearm. Rev. Rul. 54-606, 1954-2 C.B. 33. The court
concluded that Congress, in the 1968 reenactment of the statute,
intended to adopt the administrative construction of existing law.
The court recognized that while the added language "readily restored"
in the reenactment is somewhat ambiguous, Congress gave no indication
that it adopted this clause in order to add some unexplained exception
to the prior administrative construction. Pet. App. 7-11. The court
also held that a commonsense reading of the statute, combined with the
Commissioner's ruling, provides sufficient fair warning in a highly
regulated business. Id. at 13-14.
Petitioners contend (Pet. 5-16) that unassembled and
never-before-assembled constituent parts of a rifle are not a
short-barrel rifle within the meaning of 26 U.S.C. 5845, as defined in
26 U.S.C. 5845(c). Petitioners also contend (Pet. 16-20) that the
construction of the statute by the court of appeals denied them their
due process right to fair notice that their conduct was criminal.
Whatever the merits of petitioners' contentions, they are not
presently ripe for review by this Court. The court of appeals'
decision places petitioners in precisely the same position they would
have occupied if the district court had denied their motion to
dismiss. If petitioners are acquitted following a trial on the
merits, their contentions will be moot. If, on the other hand,
petitioners are convicted and their convictions are affirmed on
appeal, they will then be able to present their statutory and due
process arguments to this Court, together with any other claims they
may have, in a petition for a writ of certiorari seeking review of a
final judgment against them. Accordingly, review by this Court of the
court of appeals' decision would be premature at this time. /*/
It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.
CHARLES FRIED
Solicitor General
SEPTEMBER 1988
/*/ Because this case is interlocutory, we are not responding on
the merits to the questions presented by the petition. We will file a
response on the merits if the Court requests.